Work Health and Safety (Transitional and Consequential Provisions) Act 2011

The Act organises the move from the OHS framework to the WHS framework around a small number of recurring legal concepts: commencing day, residual operation, preserved authorisations/exemptions/codes, transitional benefit periods, and the use of WHS powers to administer residual OHS liabilities.

• Commencing day (section 4): The Act defines the commencing day as 1 January 2012. That date triggers many cut‑offs and transitional deadlines stated elsewhere in the Schedules (for example the first anniversary and second anniversary time limits in Schedule 2, Part 2). Sections 2 and 4 should be consulted when working out whether an action falls on the OHS or WHS regime.

• Residual operation of the OHS Act (Schedule 2, item 13): The statutory definition captures OHS Act operation in relation to actions and failures to act that occurred before the commencing day and to the extent the OHS Act continues to apply after the commencing day because of a provision of this Act or another law. That concept governs which investigative, enforcement and remedial powers continue to be available under the OHS Act after repeal.

• Transitional non‑application and time limits (Schedule 2, Part 2): For designers (item 2), manufacturers (item 3), importers (item 4), suppliers (item 5) and installers/commissioners (item 6), the Act exempts duties under the WHS Act where the relevant person started the work before the commencing day, but that exemption lapses after specified cut‑off periods: generally first anniversary for manufacturing/importing/supplying (items 3(4), 4(4), 5(4)), and second anniversary for designers and installers (items 2(2), 6(5)). There are preconditions and carve‑outs: where calculations, analysis, testing or examination relevant to design/manufacture/import/supply/installation are carried out, certain WHS duties apply to the results despite the general transitional immunity (e.g. items 2(3), 3(5), 4(5), 5(5)).

• Preservation of OHS regulatory instruments (Schedule 2, Part 3 and 6): Notices (prohibition, improvement), provisional improvement notices, undertakings accepted by Comcare, accident records and similar instruments that exist immediately before the commencing day remain in effect under the OHS Act as though it had not been repealed for the purposes and periods set out (items 7-8, 11, 18-20). Undertakings have a defined transitional period (item 20(3)).

• Continuity of workplace representation and committees (Schedule 2, Part 4): Designated work groups, HSRs, deputy HSRs and health and safety committees that exist at the commencing day are taken to exist under the WHS Act with specific rules about term of office and membership (item 9). Processes begun but not completed under the OHS Act may be finalised under that Act within tightly prescribed time windows (item 9(2)-(3)).

• Transfer of inspectors and investigatory powers (Schedule 2, Part 5): Investigators who are Comcare staff immediately before the commencing day are taken to be WHS inspectors on that day (item 14); WHS investigatory and compliance powers and Comcare powers may be used in relation to the residual operation of the OHS Act (items 15 and 17). The WHS Act applies in relation to those powers as if references to the WHS Act included references to the OHS Act (items 15(2), 17(2)).

• Regulatory and fiscal adjustments (Schedule 3, Part 1 and Part 2): The Act amends the SRC Act to add the WHS Act as an instrument relevant to Comcare’s and Commission’s functions and to set parameters for licensing decisions, delegations and funding of regulatory contributions and licence fees (e.g. items 13, 18, 19, 20, 24-26). Comcare may vary contributions and fees for the 2011-12 financial year to reflect costs referable to performance under both the OHS Act and WHS Act (Schedule 3, Part 2).

• Preserved authorisations/exemptions/codes subject to regulations (Schedule 2, Part 7): Registrations, licences, permits, accreditations or authorisations of classes the regulations prescribe are "preserved authorisations" that have effect under the WHS Act subject to regulatory modifications (item 21). The same approach applies to preserved exemptions (item 22) and specified parts of the Occupational Health and Safety Code of Practice 2008 may be prescribed to be taken as codes for the WHS Act for a limited period (item 23).

Finally, section 5 provides the regulation‑making power, explicitly permitting transitional, application or saving provisions and modifications of this Act, the WHS Act, the OHS Act and the SRC Act (section 5(2)). That creates delegated‑law flexibility to refine categories such as preserved authorisations and codes, and to make other modifications necessary to implement the transitional scheme.

This Act affects a defined set of actors: persons and entities with duties under the OHS Act or WHS Act (designers, manufacturers, importers, suppliers, installers/commissioners), persons conducting businesses or undertakings (PCBUs), Comcare, the Safety, Rehabilitation and Compensation Commission (the Commission), inspectors and investigators, licence holders and entities subject to regulatory contributions, and Commonwealth workers for social security purposes. The definitions in section 4 establish Comcare and the Commission as named institutional actors, and the commencing day anchors the population of actions and persons for the transitional rules.

Designers are affected where design work started before 1 January 2012; item 2 exempts them from WHS s22 duties for designs begun before the commencing day but subjects certain testing/analysis results to WHS duties and imposes a lapse date (second anniversary) after which WHS duties apply. Manufacturers, importers and suppliers who started processes before the commencing day are treated similarly: they are exempted from new WHS duties for such processes but remain subject to specified OHS Act duties that survive repeal (items 3-5). Each of these categories must track whether manufacturing/importing/supply began before the commencing day and whether the process is completed by the first anniversary (manufacture/import/supply) or second anniversary (design/install), because those completion deadlines trigger the end of the transitional shelter.

Persons who had enforcement instruments under the OHS Act immediately before the commencing day,prohibition notices, improvement notices, provisional improvement notices, undertakings, and recorded accidents or dangerous occurrences,remain regulated under the OHS Act as if it had not been repealed for the relevant matters (Schedule 2, Parts 3 and 6). That means duty holders subject to such instruments continue to have obligations enforceable under the OHS Act rather than under the WHS Act for those specific instruments.

Workplace representatives and committees are affected in that existing designated work groups, HSRs, deputies and committees are taken to continue under the WHS Act, with terms and membership governed by item 9. In‑flight processes under the OHS Act to establish groups or select HSRs can be completed under the OHS Act, but selection processes must be completed within three months of the commencing day or be recommenced under the WHS Act (item 9(2)-(3)).

Comcare and its staff are materially affected: investigators who are Comcare staff immediately before the commencing day are taken to be WHS inspectors (item 14); Comcare may exercise WHS powers in relation to residual OHS matters and may vary regulatory contributions and licence fees to reflect costs referable to the transition (Schedule 3, Part 2, items 24-26). The Commission’s delegations are restricted in respect of WHS functions: the Commission must not delegate to the Chief Executive Officer any of its functions or powers under the WHS Act (Schedule 3, item 13), shifting decision‑making structure in the SRC Act context.

Licence holders and entities that pay regulatory contributions face potential immediate cost consequences for 2011-12 by virtue of Comcare’s power to vary determinations and licence fees to include costs referable to both Acts (Schedule 3, items 24-26). The Social Security Act amendments (Schedule 4) affect employers and payroll/legal definitions for Commonwealth employees by linking the statutory meaning of "worker" for various social security provisions to the WHS Act.

Finally, the Governor‑General’s regulations power (section 5) and the Commission’s and Comcare’s administrative roles mean that regulated persons need to track delegated legislative instruments (preservation classes, codes, modifications) as these will define preserved authorisations/exemptions/codes and other transitional modifications.

The Act does not itself impose new operational health and safety duties; rather it allocates which existing duties (OHS Act or WHS Act) apply to particular facts and imposes temporal rules on their application. The key duties and rights are therefore the duties carried forward, the WHS duties that are deferred for transitional matters, and the enforcement and investigatory rights preserved for regulators.

• Deferred application of WHS duties to pre‑existing processes: For designers, manufacturers, importers, suppliers and installers, the Act defers the application of the WHS Act duties where the relevant person started the activity before the commencing day (Schedule 2, items 2-6). That creates a time‑limited right (or transitional benefit) for those persons to complete existing work according to the regime that applied when they started, subject to exceptions where work involves later calculations, testing or analysis (see items 2(3), 3(5), 4(5), 5(5)).

• Continued operation of specific OHS duties despite repeal: The Act expressly continues to make certain OHS Act duties available for matters started before the commencing day. For example, subsections 18(1) and (2) of the OHS Act continue to apply to manufacturers and importers who started processes before the commencing day (Schedule 2, item 3(2) and item 4(2)); subsection 19(1) of the OHS Act continues to apply to suppliers started before the commencing day (Schedule 2, item 5(2)); and subsection 20(1) of the OHS Act continues to apply to OHS installers who started processes before the commencing day (Schedule 2, item 6(3)). Where these OHS duties apply, the OHS Act applies to breaches or alleged breaches despite repeal (e.g. items 3(3), 4(3), 5(3), 6(4)).

• Investigatory and enforcement rights for regulators: The Act authorises WHS inspectors to exercise WHS Part 9 functions, powers and compliance powers in relation to matters within the residual operation of the OHS Act (Schedule 2, item 15). It also authorises WHS inspectors to exercise the functions and powers of OHS investigators for residual OHS matters (item 16). Comcare may exercise section 155 WHS powers in relation to residual OHS matters (item 17). These provisions create a statutory right for regulators to use the WHS investigatory and enforcement toolkit in relation to pre‑commencing acts that remain actionable under the residual OHS Act.

• Continuity of enforcement instruments and compliance obligations: Prohibition and improvement notices in force immediately before the commencing day remain binding under the OHS Act (Schedule 2, items 18-19); provisional improvement notices and other OHS notices maintain effect as stated (item 11). Undertakings accepted by Comcare under the OHS Act continue to be governed by the OHS Act during the defined transitional period (item 20).

• Rights and limitations for workplace representation: Persons who were HSRs, deputies or committee members immediately before the commencing day are taken to hold corresponding offices under the WHS Act, with fixed terms (item 9(1)(b)). Processes in flight may be completed under the OHS Act within prescribed windows; otherwise selection and constitution must comply with the WHS Act (item 9(2)-(4)). Training completed under an accredited OHS Act course is treated as satisfying certain WHS training requirements for a limited period (item 10).

• Administrative and fiscal rights of Comcare and the Commission: The SRC Act amendments inserted by Schedule 3 change delegation, licensing, guideline and funding parameters. The Commission is restricted from delegating to the Chief Executive Officer any of its WHS functions (Schedule 3, item 13). Comcare is empowered to vary determinations of regulatory contributions and licence fees for the 2011-12 financial year to account for costs referable to functions under both Acts (Schedule 3, Part 2, items 24-26). The Commission’s guideline‑making power is constrained by directions under section 149 and directions to Comcare in relation to WHS functions (Schedule 3, item 20).

• Preservation subject to regulation: Preserved authorisations, exemptions and codes only have continuing effect if they are of classes prescribed by regulation; they take effect under the WHS Act subject to any regulatory modifications and in some cases for limited periods (Schedule 2, items 21-23; section 5(2) permits such regulations). This creates a contingent right for existing authorisation or exemption holders, dependent on delegated legislation.

In short, duties are allocated by time and activity: pre‑commencement activity generally remains governed by the OHS Act or is temporarily sheltered from WHS duties until specified expiry dates, but various WHS duties are triggered earlier where analytical work is performed, and regulators retain and are given express tools to investigate and enforce residual matters.

The Act itself does not create new category‑specific penalties; rather it preserves existing enforcement regimes and enables WHS enforcement tools to be used for residual OHS Act matters. Enforcement therefore operates through two channels: (1) continued operation of existing OHS enforcement instruments and (2) enabling WHS enforcement powers to be applied to residual matters.

• Continued operation of OHS enforcement instruments: Where prohibition notices (section 46 OHS Act), improvement notices (section 47 OHS Act), provisional improvement notices (section 29 OHS Act) or undertakings accepted by Comcare under clause 16 of Schedule 2 to the OHS Act are in effect immediately before the commencing day, the OHS Act continues to apply in relation to those notices and the subject matter of those notices as if the OHS Act had not been repealed (Schedule 2, items 11, 18-20). This means the penalties and enforcement consequences that attached under the OHS Act to non‑compliance with those instruments continue to be available against those who remain subject to them.

• Use of WHS powers for residual OHS matters: The Act authorises WHS inspectors to perform functions and exercise powers under Divisions 3, 4 and 5 of Part 9 of the WHS Act in relation to matters arising in connection with the residual operation of the OHS Act (Schedule 2, item 15(1)). The WHS Act applies to such functions and powers as if references to the WHS Act included references to the OHS Act (item 15(2)). The Act explicitly states that references in the WHS Act to offences and contraventions of the WHS Act include references to offences and contraventions of the OHS Act (items 15(3), 17(3)(a)-(b)). This gives the regulator the practical enforcement toolkit of the WHS Act to investigate and prosecute residual OHS breaches. Item 16 permits WHS inspectors to exercise investigator functions under the OHS Act in connection with residual matters.

• Use of information and actions across regimes: Any action taken or information acquired under the WHS Act, or because of the operation of specified items, may be used in relation to the residual operation of the OHS Act (items 15(4), 17(4)). That provision permits investigatory crossover and evidentiary continuity, enabling regulatory agencies to use WHS investigatory outputs to pursue residual OHS enforcement.

• Comcare’s variation of regulatory contributions and licence fees: Schedule 3, Part 2 (items 24-26) grants Comcare authority to vary regulatory contributions and licence fees for the 2011-12 financial year to include parts of the estimated costs incurred by the Commission and Comcare in carrying out functions under the OHS Act, the WHS Act and this transitional Act that are referrable to a specific Entity or licensee. Item 25(2) requires payment of any increased licence fee amount within a period determined by the Commission. That introduces an immediate fiscal enforcement mechanism: licensees and Entities must comply with payment notices under schedule variation powers, or be liable for default consequences in the relevant SRC Act provisions.

• Limitations and constraints on delegation and decision‑making: The Commission is prohibited from delegating to the Chief Executive Officer any of its functions or powers under the WHS Act (Schedule 3, item 13). The Commission’s guideline making is constrained by directions under section 149 and directions to Comcare in relation to performance of WHS functions (Schedule 3, item 20). These structural rules affect which body decides on compliance standards, guidelines and licence matters that have enforcement implications.

• Regulatory discretion through regulations: Section 5 permits the Governor‑General to make regulations necessary or convenient to carry out this Act, including making transitional, application or saving provisions and modifications of the WHS Act, the OHS Act and the SRC Act (section 5(2)). The practical effect is that the scope of preserved authorisations, preserved exemptions and prescribed parts of codes of practice is delegated to regulation. Enforcement will therefore depend in part on how regulations classify preserved documents and modify duties.

To identify the concrete penalty exposure for a particular conduct, practitioners must trace whether a matter falls within the residual operation of the OHS Act, whether any OHS notices remain in force, whether WHS duties have taken effect (including by lapse of transitional shelter), and which enforcement powers the regulator is exercising. The Act ensures continuity of enforcement instruments and provides the regulator with cross‑regime power to investigate and rely on evidence obtained under the WHS Act for residual OHS prosecutions.

The Act is structured primarily as a transitional bridge and consequential amendment instrument. Its Schedules and sections expressly interact with the OHS Act, the WHS Act, the Safety, Rehabilitation and Compensation Act 1988 (SRC Act), and the Social Security Act 1991. Those interactions are explicit and formal.

• Repeal of the OHS Act: Schedule 1 repeals the whole of the Occupational Health and Safety Act 1991. However, the Schedule 2 residual operation definition (item 13) and the transitional items in Schedule 2 create continued application of the OHS Act in limited circumstances (Schedule 2, Part 1). Practitioners must therefore treat the OHS Act as both repealed and still operative in a circumscribed set of factual scenarios, defined by the residual operation concept (item 13) and preserved instruments and duties elsewhere in Schedule 2.

• Relationship with the WHS Act: Sections 4 and 5 are timed to commence with the WHS Act (section 2 table). Many Schedule 2 provisions explicitly allocate duties between OHS and WHS regimes: items 2-6 specify when WHS duties (for designers, manufacturers, importers, suppliers, installers) do not apply because the work started before the commencing day, and when WHS duties begin to apply (first or second anniversaries). Items 15-17 authorise use of WHS investigative and compliance powers in relation to residual OHS matters and treat references in the WHS Act to contraventions and offences as including contraventions and offences against the OHS Act in specified contexts (items 15(2)-(3), 17(2)-(3)). The Act therefore creates a two‑way interface: certain pre‑commencement activities remain OHS matters, but WHS enforcement tools and procedural machinery can be deployed to address them.

• SRC Act adjustments: Schedule 3 makes multiple consequential amendments to the SRC Act to incorporate the WHS Act into the list of relevant statutory instruments (e.g. item 1 inserting Work Health and Safety Act 2011 into subparagraph 69(ef)(ii)), to alter delegation and licensing arrangements (items 13, 18), to add notes about functions conferred by the WHS Act (items 7 and 8), to constrain guideline making and delegation in relation to WHS functions (item 20 and item 13), and to permit Comcare to recoup costs via regulatory contributions and licence fees for both OHS and WHS functions for the 2011-12 year (Part 2, items 24-26). These amendments change institutional obligations, funding flows and the Commission’s decision structure.

• Social Security Act alignment: Schedule 4 amends several provisions in the Social Security Act 1991 to substitute references to the WHS Act where the OHS Act references previously appeared (Schedule 4, items 1-3). That aligns definitions of "worker" and related social security treatment of Commonwealth employees with the WHS Act’s terms and scope.

• Regulations and delegated instruments: Section 5 authorises regulations that may be transitional, application or saving in nature and permits regulations to make modifications of this Act, the WHS Act, the OHS Act and the SRC Act. Schedule 2 items that preserve authorisations, exemptions and parts of codes of practice are expressly conditional on regulation classes being prescribed for that purpose (Schedule 2, items 21-23; section 5(2)). Therefore, the coverage and effect of preserved instruments depends on delegated legislation.

• Temporal overlap and financial year implications: Some amendments to the SRC Act are made to apply from 1 July 2011 (Schedule 3, items 22-23 and the application clause), meaning that the transitional financial year 2011-12 is a focal point for funding and reporting consequences. Schedule 2 item 24 modifies annual reporting obligations stemming from the OHS Act by limiting information for the 2011-12 financial year to the period up to 31 December 2011.

The Act therefore operates by layering modifications on top of the new WHS Act while keeping limited threads of the OHS Act alive for pre‑commencement conduct. The coherence of enforcement, funding and definitional matters depends on reading Schedule 2 residual rules together with the WHS Act and the amended SRC Act provisions; delegated regulations will alter the precise perimeter of preserved authorisations, exemptions and codes. Practitioners must analyse each matter against the defined interactions to determine which regime and which procedural and fiscal rules apply.

The Act, as provided in this source text, is presented in its original enacted form. The short title and commencement information are explicit about timing: sections 1-3 and any matter not otherwise covered by the commencement table commence on the day of Royal Assent, 29 November 2011, while sections 4 and 5 and Schedules 1-4 commence at the same time as the WHS Act, namely 1 January 2012 (section 2 table). Section 3 states that each Act specified in a Schedule is amended or repealed as set out in the applicable Schedule.

The Act’s text contains an editorial note (section 2(2)) that any information in the third column of the commencement table is not part of the Act and may be edited in published versions; that note signals that the printed commencement table is an enactment aid rather than substance. The definitions (section 4) and the regulation power (section 5) are presented as enacted.

Schedule 3 includes transitional amendments to the SRC Act and specific application clauses (e.g. Schedule 3, item 23 states the amendments made by items 17, 19 and 21 apply in relation to the financial year starting 1 July 2011 and each later financial year, and the other amendments in that Part apply on and from 1 July 2011). Schedule 3 Part 2 gives Comcare explicit powers to vary regulatory contributions and licence fees for the financial year starting 1 July 2011, and states the relevant application despite subsection 97M(1) of the SRC Act, with other parts of that section applying to variations (items 24-26).

The Act includes a final note that the Minister’s second reading speech was made in the House of Representatives on 6 July 2011 and in the Senate on 31 October 2011; the source does not include the text of the speech. The commencement table includes a final note that the table relates only to the provisions as originally enacted and will not be amended to deal with any later amendments. The printed Act therefore documents only original enactment timing and original Schedules; there is no embedded record in the text supplied of later amendments, repeals or disallowances. As such, the amendment history available in this source is limited to the original enactment, the commencement chart (s2), and the Schedule application clauses that make certain items effective from 1 July 2011 for SRC Act purposes (Schedule 3, Part 1 items with application statements). Any later amending legislation or regulations would not appear in this source and must be checked in consolidated statute databases or legislative instruments registers.

The Act’s text as supplied contains no case law, judicial decisions or references to litigation. It is a transitional and consequential instrument and the source includes no reported judicial interpretation or litigation outcomes. The Act itself preserves causes of action and enforcement avenues under the OHS Act for pre‑commencing breaches (Schedule 2, Part 1 and item 13) and permits investigators and inspectors to use WHS powers in relation to residual OHS matters (Schedule 2, items 15-17); those provisions create factual situations where litigation could arise, but the text supplies no examples or case citations.

Because the source contains no litigation history, practitioners should infer from the statutory structure where litigation risks may concentrate: disputes may arise over whether a particular act or failure to act occurred before the commencing day (affecting whether the OHS Act or the WHS Act applies), over whether a design/manufacture/import/supply/installation process was "started" before the commencing day for the purpose of transitional shelters (Schedule 2, Part 2, items 2-6), over the application of WHS duties to results of calculations/analysis/testing despite otherwise preserved transitions (items 2(3), 3(5), 4(5), 5(5)), and over the regulator’s exercise of WHS powers in relation to residual OHS matters (items 15-17). Disputes may also arise over Comcare’s exercise of power to vary regulatory contributions and licence fees for the 2011-12 year (Schedule 3, Part 2, items 24-26), and over the regulatory classification of preserved authorisations, exemptions and codes (Schedule 2, Part 7 items 21-23 and section 5).

In sum, the Act creates legal interfaces likely to generate litigation in practice, but the supplied statutory text contains no reported cases or litigation outcomes. For litigation history, users must consult case law databases and court registries for decisions post‑commencement that interpret the Act’s transitional provisions.

The Act contains numerous drafting features likely to produce pitfalls if not tracked carefully by duty holders and advisers. The following are concrete technical points drawn from the text that can affect substantive exposure and compliance obligations.

• Completions and the "started" test: Many transitional exemptions hinge on whether a designer, manufacturer, importer, supplier or installer "started" the relevant process before the commencing day (Schedule 2, items 2-6). The Act does not define "started" in Schedule 2; duty holders will therefore need to evidence start dates (contracts, orders, engineering records) because failure to complete the activity by specified anniversaries will cause the transitional benefit to lapse and WHS duties to bite (first anniversary for manufacturers/importers/suppliers; second anniversary for designers/installers). Practitioners must advise clients to document exact start and completion points.

• Carve‑outs for testing, analysis or calculations: Even where processes were started before the commencing day, if a designer, manufacturer, importer, supplier or installer carries out calculations, analysis, testing or examination relevant to safety, WHS duties apply to the results despite the general exemption (Schedule 2, items 2(3), 3(5), 4(5), 5(5)). That creates a trap where post‑commencement analytical work, perhaps performed to finalise a product, retroactively triggers WHS duties in respect of those results. Advisers must warn clients that limited post‑commencement work may expand regulatory obligations.

• Different anniversary cut‑offs: Designers and installers have a two‑year protective window (items 2(2) and 6(5)), while manufacturers, importers and suppliers generally have a one‑year window (items 3(4), 4(4), 5(4)). Mis‑applying the wrong anniversary could materially affect whether the WHS Act applies. These differing timelines create administrative complexity for contractors and supply chains.

• Residual OHS Act and crossover of enforcement powers: The OHS Act is repealed but continues to apply to pre‑commencement conduct as described (Schedule 2, item 1 and item 13). WHS inspectors and Comcare may exercise WHS investigatory and compliance powers in relation to residual OHS matters and may rely on information obtained under WHS powers for residual OHS enforcement (items 15-17). That means that investigative activity post‑commencement will not necessarily be limited to WHS claims; evidence and powers can be deployed across regimes. Parties should expect regulators to use the WHS toolkit even when the substantive breach is residual OHS.

• Time‑limited preservation of codes and training recognition: Parts of the Occupational Health and Safety Code of Practice 2008 may be prescribed as preserved codes and taken to be approved WHS codes, but that deemed approval ceases on the second anniversary of the commencing day (item 23(2)-(3)). Training accredited under the Commission for OHS Act purposes is taken to satisfy certain WHS training requirements for only 12 months (item 10). So longstanding reliance on older codes and courses requires renewal or replacement planning within fixed windows.

• Preserved authorisations and exemptions depend on regulations: The Act preserves authorisations and exemptions only for classes prescribed by regulation (items 21-22) and allows modifications of those preserved classes by regulation (section 5(2)). That creates regulatory uncertainty until the relevant regulations are made; affected holders must monitor delegated instruments closely.

• Financial adjustments for 2011-12: Comcare may vary regulatory contributions and licence fees for the financial year beginning 1 July 2011 to include portions of costs referable to both the OHS and WHS regimes (Schedule 3, items 24-26). Entities and licensees should be alerted that fee or contribution notices can be varied and additional amounts demanded for that specific financial year, and payment periods for any increase are to be determined by the Commission (item 25(2)).

• Delegation constraint in the Commission: Schedule 3, item 13 prevents the Commission from delegating any of its WHS functions or powers to the Chief Executive Officer. That restructures decision flows for WHS matters handled under the SRC Act umbrella and may affect timing and the path of administrative review.

• Recommencement requirement for incomplete HSR selections: Processes started under the OHS Act to select a health and safety representative or deputy may be completed under the OHS Act if done within three months after the commencing day; otherwise selection must be recommenced under the WHS Act (item 9(2)-(3)). Workplaces with HSR elections in train at the time of repeal must act within the three‑month window or face restarting under WHS procedures.

These are not mere drafting oddities: they determine which statutory regime applies, which enforcement tools are available, whether historic authorisations persist, when training and codes remain acceptable, and whether immediate fee increases can be levied. The source provisions cited above are the primary authorities for each of these "gotchas".

Compliance under this transitional statute requires tracking three distinct dimensions: timing (the commencing day and anniversary deadlines), activity classification (whether a process was "started" before the commencing day and whether it has been completed within the applicable window), and regulatory instrument status (whether a preserved authorisation, exemption or code has been prescribed by regulation). The text provides precise operational steps implied by those constraints.

1. Establish dates and documentary evidence for the start and completion of relevant processes. For designers, manufacturers, importers, suppliers and installers, record the date on which design, manufacturing, importation, supply or installation processes were started. The transition relief depends on having started the activity before 1 January 2012 (Schedule 2, items 2-6). Maintain contemporaneous documentation (emails, contracts, purchase orders, commissioning certificates) that establishes a start date and any completion date, because the exemption lapses unless the process is completed by the applicable anniversary (first or second anniversary depending on category).

2. Monitor and limit post‑commencement analytical work. If any calculations, analysis, testing or examination relevant to safety are carried out after the commencing day, WHS duties apply to the results despite transitional shelter (items 2(3), 3(5), 4(5), 5(5)). To control regulatory exposure, either complete required analytical work before the commencing day where possible, or identify and document the scope and purpose of post‑commencement testing so that duty holders can assess whether those results will trigger WHS obligations.

3. Verify the status of enforcement instruments and comply with their terms. If a prohibition, improvement or provisional improvement notice, or an undertaking accepted by Comcare, was in effect immediately before the commencing day, those instruments and any related OHS Act obligations continue under the OHS Act for the subjects and periods specified (Schedule 2, items 11, 18-20). Ensure that compliance activities under those instruments continue uninterrupted and that records and reporting required by section 69 OHS Act (accident/dangerous occurrence records) are maintained (item 8).

4. Confirm workforce representation status and training currency. If your workplace had designated work groups, HSRs, deputies or health and safety committees in operation immediately before the commencing day, they are taken to exist under the WHS Act with term and membership rules (Schedule 2, item 9). Ensure the term of office is recorded (three years beginning on last selection under the OHS Act) and that members consent to membership where necessary. For training, if personnel completed an OHS Commission‑accredited course for OHS s27 purposes, that course will be treated as satisfying WHS training requirements under subsections 85(6) or 90(4) only for 12 months after the commencing day (item 10). Plan to arrange WHS‑specific training as the 12‑month recognition period ends.

5. Watch preserved authorisations, exemptions and codes for regulatory action. The continued effect of registrations, licences, permits, accreditations and exemptions depends on the regulations prescribing classes to be preserved (Schedule 2, items 21-22); parts of the 2008 OHS Code of Practice may be taken as WHS codes where prescribed, but only until the second anniversary (item 23). Monitor the Federal Register of Legislation or the relevant delegated instrument register for regulations made under section 5(2) that identify preserved classes and any modifications, and adjust compliance systems accordingly when instruments are not preserved or when their deemed approval expires.

6. Prepare for potential funding and fee adjustments for 2011-12. If you are a licensee or an Entity subject to Comcare assessments, be aware that Comcare may vary regulatory contributions and licence fees for the financial year beginning 1 July 2011 to include costs referable to the OHS Act, the WHS Act and this transitional Act (Schedule 3, Part 2, items 24-26). Ensure financial planning and cashflow permits prompt payment of any notice of increased licence fee amount; the Commission determines the period for payment (item 25(2)).

7. Align internal incident reporting to the WHS Act’s notifiable incident rule where awareness occurs on or after the commencing day. The WHS Act applies in relation to a notifiable incident if the person conducting the business or undertaking becomes aware of it on or after the commencing day, even if the incident occurred earlier (Schedule 2, item 7). Apply WHS reporting procedures from 1 January 2012 where awareness arises on or after that date.

8. Coordinate with Comcare and the regulator on investigations. Investigators who were Comcare staff are taken to be WHS inspectors on the commencing day (item 14), and WHS investigation powers may be used in relation to residual OHS matters (items 15-17). Expect regulators to use WHS inquiry powers and prepare documentation to respond to notices or consents under WHS investigatory provisions. Preservation of identity cards and inspector credentials is covered: an identity card held by an investigator under the OHS Act is taken to be a WHS identity card compliant with subsection 157(1) of the WHS Act (item 14(2)).

9. Re‑run incomplete HSR selection processes if outside the three‑month window. If a process to select a health and safety representative or deputy was started but not completed under the OHS Act and remains incomplete three months after the commencing day, the process needs to be recommenced under the WHS Act (item 9(2)-(3)). Identify any workplaces with elections in train at the time of transition and either complete them within three months or recommence selection under WHS procedures.

10. Document compliance and seek rulings where necessary. Because many transitional benefits depend on fact‑sensitive timings and regulatory classification via regulations, maintain auditable records of start/completion dates, post‑commencement analytical activities, preserved instrument status and communications with Comcare or the regulator. If doubt exists about whether a particular activity is residual OHS or new WHS duty, seek written clarification from the regulator or early legal advice to manage enforcement risk.

Following these steps, grounded in the cited items of the Act and Schedules, will position regulated parties to identify whether they are operating under preserved OHS obligations or under the WHS Act, to meet cut‑off deadlines, to comply with preserved notices and undertakings, and to respond to financial demands under the SRC Act amendments.